Report of the Litigation Committee
Since the previous issue of epi Information, the Litigation Committee held an online Committee meeting on 3 April 2025. The Executive Group has continued with its monthly meetings.
The Chair, together with the President, attended the 14th UPC AC meeting on 14 February 2025.
The work on the new UPC CMS has continued intensively with regular two-hour bi-weekly [online] exercises.
Litigation Committee
At our Committee meeting on 3 April 2025 we introduced two new questionnaires. A first one on Client-Patent Attorney Privilege in the EPC member states (Executive Group) and a second one on Judicial Training in the EPC member states (Sub-committee on National Litigation Matters). An article on litigation support is under preparation.
We discussed some UPC case-law, one on Art. 48 UPCA Representation and one on Art. 83 UPCA Transitional Regime. There are articles on the respective topics in this issue.
We also looked at “long arm jurisdiction” for courts within the EU and of the UPC.
The ruling in the CJEU case C-339/22 which issued on 25 April 2025 concerned a referral from the Svea Court of Appeal/Patent and Commercial Court of Appeal (SE) to the CJEU on BSH Hausgeräte GmbH (BSH) v Electrolux Aktiebolag (Electrolux). The case was about “long arm/cross-border jurisdiction” of an EU national court. According to the ruling, a national court of the domicile of the defendant in an EU Member State has jurisdiction based on Article 4 Brussels I bis Regulation on infringement for a non-EU Member State. However, the court cannot decide on the validity or registration of the patent in the third State, since that would be in contradiction with the sovereignty of that third State.
The UPC issued a decision UPC_CFI_355/2023 on long arm jurisdiction (Fujifilm Corporation v Kodak) on 28 January 2025. The Court found that if the defendant is domiciled in a Contracting Member State (DE), the UPC (deemed to be a court of a Member State) has jurisdiction to hear the infringement action in respect of the UK part of the patent in suit. This also applies if the defendant has filed a counterclaim for revocation in respect of the German part of the patent in suit. However, the Court dismissed the infringement case considering that the factual legal situation regarding the UK part of the patent in suit would not be different than in DE where the patent was revoked though the UK part of the patent in suit had not been challenged in the UK.
The new UPC CMS
In advance of the bi-weekly exercises, those who act as Court, Registrar and parties normally have a two-hour preparatory session the day before.
The Court & Registrar work at the “back office” and the user representatives take turns as parties at the “front office”.
Various scenarios, opt-outs, protective letters, provisional measures, infringement, provisional measures, related appeals, etc. are tested so that the participants operate and follow the various steps both in the “back office” and the “front office”.
14th Meeting of the UPC Administrative Committee
The 14th UPC AC meeting was held on 14 February 2025 in Luxembourg.
The Court presented its first Annual Report which was published on the day of the meeting.
The CFI presented some statistics. There are an increasing number of cost decisions. For infringement cases the English and German languages are in balance, about 47% each. English is however dominant (55%) considering all cases ( German 38%). Most revocation cases are prosecuted in English (89%). The latest monthly case report can be accessed here.
The CoA noted that procedural case law is available for the CFI and the users, provisional measures and securing evidence. There are hearings on merits in May and June 2025.
The most interesting report was given by the Director Mr. Aleš Zalar of the PMAC. An 11-person Expert Group has 5 working groups covering the rules of arbitration, the rules of mediation, fee schedules, list of arbitrators and mediators (neutrals) and a code of conduct for the neutrals. The launch target is for the end of 2025. Public consultations on the various rules and fees have already started.
The next 15th and 16th UPC AC meetings are scheduled for 2 July and 4 November 2025 respectively.
Education
The Inter-Committee WG EPPC-PEC, with members from LitCom has produced regular podcasts on UPC topics and case-law. Webinars and seminars are also available.
